Folau set to seek $10 million in damages from Rugby Australia

The Israel Folau saga is threatening to swallow up Australian rugby for the next 12 months after the controversial dual international signalled he would seek up to $10 million in damages over his sacking.

Rugby Australia strongly defended its decision to terminate Folau's four-year, $5 million contract over a social media post condemning homosexuals to Hell, maintaining the case was a matter of employment law and not freedom of religion.

Taking action: Israel Folau is headed to the Fair Work Commission.Credit:AAP

But the issue is set to suck up the attention and budget of Rugby Australia for at least 12 months, potentially overshadowing a World Cup campaign, as Folau pursues an unlawful sacking ruling and up to $10 million in damages through the Fair Work Commission and, eventually, the Federal Court.

It is a battle without precedent in Australian sport, with Folau contending he was sacked last month because of his religion.

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According to documents filed with the Commission, he is seeking a ruling that RA's actions were unlawful and at least $5 million in lost income if the case is heard in the Federal Court.

He will also seek to have included in the bill the monetary value of lost opportunities, which could blow the claim out to $10 million, a source close to Folau's team said.

"The termination has cost Mr Folau the best years of his rugby career, participation at the Rugby World Cup, the chance to become the greatest Wallaby try-scorer (a decades-old record he was likely to break), and the associated exposure and opportunities," Folau's application stated.

"As well as around $5 million in lost salary, Mr Folau will claim in respect of the loss of these opportunities (renewal of contract, sponsorships, etc).

"The damages will be particularised in due course, but will be substantial. In addition, Mr Folauwill seek civil penalties."

Folau has engaged eminent silk Stuart Wood QC, an industrial relations expert, and the head of employment law at Macpherson Kelley, George Haros, who has represented Australian basketballer Liz Cambage in employment matters.

Excerpts of court documents for unlawful termination dispute:

Mr Folau will seek a declaration that his employment was unlawfully terminated because of his religion. Further, Mr Folau will make a compensation/damages claim. The termination has cost Mr Folau the best years of his rugby career, participation at the Rugby World Cup, the chance to become the greatest Wallaby try-scorer (a decades-old record he was likely to break), and the associated exposure and opportunities. As well as around $5 million in lost salary, Mr Folau will claim in respect of the loss of these opportunities(renewal of contract, sponsorships, etc). The damages will be particularised in due course, but will be substantial. In addition, Mr Folau will seek civil penalties.

A statement released by Folau's team said he would challenge his sacking under section 772 of the Fair Work Act, which prohibits an individual's employment being terminated on the basis of religion. If the parties cannot reach a resolution in the Commission, it has the power to issue a certificate to that effect, paving the way for Folau to take his claim to the Federal Court.

The 73-Test Wallaby's four-year contract was torn up on May 20 after a three-person independent panel found his April 10 Instagram post – proclaiming homosexuals, among other groups, would go to hell – amounted to a high-level breach of the code of conduct.

RA said in a statement the issue was about an employee refusing to honour the contract he signed.

"He was bound by a code of conduct for all professional players in Australia that spells out clear guidelines and obligations regarding player behaviour, including respectful use of social media," the organisation said in a statement.

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"An independent panel, having sat for 22 hours and heard testimony from several witnesses and reviewed over 1000 pages of evidence, determined that Israel’s conduct constituted a high-level breach of the code of conduct and ordered termination of his playing contract.

"It is important to make clear that Rugby Australia and NSW Rugby did not choose to be in a position where they are forced to divert significant resources to defend the ongoing legal action taken by Israel, but his action leaves the game with no choice."

In an earlier statement, Folau said he felt his treatment by RA and the Waratahs had left him no choice but to stand up for his beliefs.

"I will forever be grateful and proud to have played the sport I love for our nation. Ours is an amazing country built on important principles, including freedom of religion. A nation made up of so many different faiths and cultural backgrounds will never be truly rich unless this freedom applies to all of us," he said.

"The messages of support we have received over these difficult few weeks have made me realise there are many Australians who feel their fundamental rights are being steadily eroded. No Australian of any faith should be fired for practising their religion."

Excerpts of court documents continued

See attached letter dated 17 May 2019 entitled “Termination of Contract”. The termination came about in the following circumstances:

Mr Folau is a champion rugby player who, despite having played the sport for only five years, has played 73 international games for the Australia national rugby union team (the Wallabies) and is already the highest try-scorer in Super Rugby history and the fourth highest all-time Wallaby try-scorer.

Until his termination, Mr Folau was an employee of the Waratahs Rugby Pty Ltd (Waratahs) and, periodically, the Respondent (Rugby Australia). A separate Form F9 application has been filed in relation to Waratahs.

Mr Folau is a Christian of Tongan heritage. He was raised in a strict Christian household. He is a member of the Truth of Jesus Christ Church. He regularly attends Church and Bible studies, preaches sermons at Church, and reads the Bible daily.

As a manifestation of Mr Folau’s religion, he is compelled to communicate the word of God and the message contained within the Bible (Biblical Teachings) (the doing of which he considers to be a loving gesture to others).